Q: How much leave am I entitled to
for medical or family leave?
If you are an "eligible"
employee, you are entitled to 12 weeks of leave for certain family
and medical reasons during a 12-month period.
Q:
How is the 12-month period calculated under FMLA or NJFLA?
Employers may select
one of four options for determining the 12-month period:
- the calendar year;
- any fixed 12-month "leave
year" such as a fiscal year, a year required by State law,
or a year starting on the employee’s "anniversary"
date;
- the 12-month period measured forward
from the date any employee’s first family leave begins;
or
- a "rolling" 12-month
period measured backward from the date an employee uses FMLA
or NJFLA leave.
Q:
Does the law guarantee paid time off?
No. The federal FMLA
or NJFLA only require unpaid leave. However, the laws both permit
an employee to elect, or the employer to require the employee,
to use accrued paid leave, such as vacation or sick leave, for
some or all of the family or medical leave period. When paid leave
is substituted for unpaid family or medical leave, it may be counted
against the 12-week FMLA or NJFLA leave entitlement if the employee
is properly notified of the designation when the leave begins.
Q:
Does workers’ compensation leave count against an employee’s
family or medical leave entitlement?
It can. Family and medical
leave and workers’ compensation leave can run together, provided
the reason for the absence is due to a qualifying serious illness
or injury and the employer properly notifies the employee in writing
that the leave will be counted as family or medical leave.
Q:
If an employer fails to tell employees that the leave is FMLA
or NJFLA leave, can the employer count the time they have already
been off against the 12 weeks of FMLA or NJFLA leave?
In most situations,
the employer cannot count leave as NJFLA or FMLA leave retroactively.
Remember, the employee must be notified in writing that an absence
is being designated as NJFLA or FMLA leave. If the employer was
not aware of the reason for the leave, leave may be designated
as NJFLA or FMLA leave retroactively only while the leave is in
progress or within two business days of the employee’s return
to work.
Q:
Who is considered an immediate "family member" for purposes
of taking NJFLA and FMLA leave?
An employee’s spouse,
children (son or daughter), and parents are immediate family members
for purposes of FMLA. The term "parent" does not include
a parent "in-law" under the FMLA, but under the NJFLA,
a parent-in-law is included under the category of "immediate
family member" (see below). The terms
son or daughter do not include individuals age 18 or over unless
they are "incapable of self-care" because of mental
or physical disability that limits one or more of the "major
life activities" as those terms are defined in regulations
issued by the Equal Employment Opportunity Commission (EEOC) under
the Americans with Disabilities Act (ADA). The NJFLA definition
is substantially the same.
Under the FMLA,
"parent" means a biological parent or an individual
who stands or stood in loco parentis to an employee when the employee
was a son or daughter. For further clarification, please visit
http://www.dol.gov/elaws/esa/fmla/fl.asp
Under the NJFLA,
"parent" means a person who is the biological parent,
adoptive parent, resource family parent, step-parent, parent-in-law
or legal guardian, having a "parent-child relationship"
with a child as defined by law, or having sole or joint legal
or physical custody, care, guardianship, or visitation with a
child. For further clarification, please visit http://www.njcivilrights.com/library.html#attorney
Q:
May I take FMLA leave for visits to a physical therapist, if my
doctor prescribes the therapy?
Yes. FMLA and NJFLA
both permit an employee to take leave to receive "continuing
treatment by a health care provider," which can include recurring
absences for therapy treatments such as those ordered by a doctor
for physical therapy after a hospital stay or for treatment of
severe arthritis.
Q:
Which employees are eligible to take FMLA and NJFLA leave?
Employees are eligible
to take FMLA leave if they have worked for their employer for
at least 12 months, have worked for at least 1,000 hours over
the previous 12 months, and work at a location with at least 50
employees.
Q:
Do the 12 months of service with the employer have to be continuous
or consecutive?
No. The 12 months do
not have to be continuous or consecutive; all time worked for
the employer is counted.
Q:
Do the 1,000 hours include paid leave time or other absences from
work?
No. The 1,000 hours
include only those hours actually worked for the employer. Paid
leave and unpaid leave, including FMLA and NJFLA leave, are not
included.
Q:
How do I determine if I have worked 1,000 hours in a 12-month
period?
Your individual record
of hours worked would be used to determine whether 1,000 hours
had been worked in the 12 months prior to the commencement of
FMLA or NJFLA leave. As a rule of thumb, the following may be
helpful for estimating whether this test for eligibility has been
met;
- 24 hours worked in each of
the 52 weeks of the year; or
- over 104 hours worked in each
of the 12 months of the year; or
- 40 hours worked per week for
more than 31 weeks (over seven months) of the year.
Q:
Do I have to give my employer my medical records for leave due
to a serious health condition?
No. You do not have
to provide medical records. The employer may, however, request
that, for any leave taken due to a serious health condition, you
provide a medical certification confirming that a serious health
condition exists.
Q:
Can my employer require me to return to work before I exhaust
my leave?
Subject to certain limitations,
your employer may deny the continuation of FMLA or NJFLA leave
due to a serious health condition if you fail to fulfill any obligations
to provide supporting medical certification. The employer may
not, however, require you to return to work early by offering
you a light duty assignment.
Q:
Are there any restrictions on how I spend my time while on leave?
Employers with established
policies regarding outside employment while on paid or unpaid
leave may uniformly apply those policies to employees on FMLA
or NJFLA leave. Otherwise, the employer may not restrict your
activities. The protections of FMLA will not, however, cover situations
where the reason for leave no longer exists, where the employee
has not provided required notices or certifications, or where
the employee has misrepresented the reason for leave.
Q:
Can my employer make inquiries about my leave during my absence?
Yes, but only to you.
Your employer may ask you questions to confirm whether the leave
needed or being taken qualifies for FMLA or NJFLA purposes, and
may require periodic reports on your status and intent to return
to work after leave. Also, if the employer wishes to obtain another
opinion, you may be required to obtain additional medical certification
at the employer’s expense, or rectification during a period
of FMLA leave. The employer may have a health care provider representing
the employer contact your health care provider, with your permission,
to clarify information in the medical certification or to confirm
that it was provided by the health care provider. The inquiry
may not seek additional information regarding your health condition
or that of a family member.
Q:
Can my employer refuse to grant me FMLA leave?
If you are an "eligible"
employee who has met the FMLA’s notice and certification
requirements (and you have not exhausted your FMLA or NJFLA leave
entitlement for the year), you may not be denied leave.
Q:
Will I lose my job if I take FMLA or NJFLA leave?
Generally, no. It is
unlawful for any employer to interfere with or restrain or deny
the exercise of any right provided under this law. Employers cannot
use the taking of FMLA or NJFLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary
actions; nor can FMLA or NJFLA leave be counted under "no
fault" attendance policies. Under limited circumstances,
an employer may deny reinstatement to work - but not the use of
FMLA or NJFLA leave - to certain highly-paid, salaried ("key")
employees.
Q:
Are there other circumstances in which my employer can deny me
FMLA leave or reinstatement to my job?
In addition to denying
reinstatement in certain circumstances to "key" employees,
employers are not required to continue FMLA or NJFLA benefits
or reinstate employees who would have been laid off or otherwise
had their employment terminated had they continued to work during
the FMLA or NJFLA leave period as, for example, due to a general
layoff.
Employees who give unequivocal
notice that they do not intend to return to work lose their entitlement
to FMLA leave.
Employees who are unable
to return to work and have exhausted their 12 weeks of FMLA or
NJFLA leave in the designated "12 month period" no longer
have FMLA and NJFLA protections of leave or job restoration.
Under certain circumstances,
employers who advise employees experiencing a serious health condition
that they will require a medical certificate of fitness for duty
to return to work may deny reinstatement to an employee who fails
to provide the certification, or may delay reinstatement until
the certification is submitted.
Q:
Can my employer fire me for complaining about a violation of FMLA?
No. Nor can the employer
take any other adverse employment action on this basis. It is
unlawful for any employer to discharge or otherwise discriminate
against an employee for opposing a practice made unlawful under
FMLA.
Q:
Does an employer have to pay bonuses to employees who have been
on FMLA leave?
The FMLA requires that
employees be restored to the same or an equivalent position. If
an employee was eligible for a bonus before taking FMLA leave,
the employee would be eligible for the bonus upon returning to
work. The FMLA leave may not be counted against the employee.
For example, if an employer offers a perfect attendance bonus,
and the employee has not missed any time prior to taking FMLA
leave, the employee would still be eligible for the bonus upon
returning from FMLA leave.
On the other hand, FMLA
does not require that employees on FMLA leave be allowed to accrue
benefits or seniority. For example, an employee on FMLA leave
might not have sufficient sales to qualify for a bonus. The employer
is not required to make any special accommodation for this employee
because of FMLA. The employer must, of course, treat an employee
who has used FMLA leave at least as well as other employees on
paid and unpaid leave (as appropriate) are treated.
Q:
Under what circumstances is leave designated as FMLA leave and
counted against the employee's total entitlement?
In all circumstances, it is the employer's responsibility to designate
leave taken for an FMLA reason as FMLA leave. The designation
must be based upon information furnished by the employee. Leave
may not be designated as FMLA or NJFLA leave after the leave has
been completed and the employee has returned to work, except if;
- the employer is awaiting receipt
of the medical certification to confirm the existence of a
serious health condition;
- the employer was unaware that
leave was for an FMLA or NJFLA reason, and subsequently acquires
information from the employee such as when the employee requests
additional or extensions of leave; or,
- the employer was unaware that
the leave was for an FMLA or NJFLA reason, and the employee
notifies the employer within two days after return to work
that the leave was FMLA or NJFLA leave.
Q:
Can my employer count FMLA or NJFLA leave I take against a no
fault absentee policy?
No.